▌ judgment argument
Be rejected those who sue to divorce by the ruling, its are sued belong to lawbreaking program, do not belong to legal should applicable the case that prosecutes again after 6 months, if party sues those who accord with condition of put on record again, ought to give accept.
▌ basic details of a case
La Mou and Liu Mou fasten husband and wife, both sides marries at was being registered on August 28, 2009, marriage hind did not bear children. On August 23, 2016, la Mou sues requirement and Liu Mou to divorce to flourish prosperous court for the first time, after this courtyard classics is tried, made on September 30, 2016 (2016) change 0153 civilian first 4718 civil judgment, the court decision rejected the lawsuit that La Mou divorces this to request, reach service at be the same as day to be adjudged to La Mou and Liu Mou judgment. On April 5, 2017, la Mou sues requirement and Liu Mou the 2nd times to divorce, examine via this courtyard, because La Mou is in (2016) change 0153 civilian after court decision of 4718 civil judgment forbids to divorce first, without new case, new ground, sue again inside 6 months, do not accord with sue a condition. On April 19, 2017, this courtyard is made lawfully (2017) change 0153 civilian first book of 1747 civil rulings, the ruling rejects La Mou sue. The day that La Mou makes at afore-mentioned civil ruling books got ruling book, divorce at be the same as day to sue requirement and Liu Mou the 3rd times to this courtyard because of burst of feeling of husband and wife. At the same time Liu Mou got afore-mentioned civil ruling books at be the same as a month 22 days.
▌ difference
This case controversy focus is, is the 3rd divorce of La Mou sued whether to accord with condition of put on record?
The first kind of opinion thinks, this case prosecutor sues regulation of be good law the 3rd times, the day that accuser is the civil judgment go into effect that divorces with be being adjudicated to forbid for the first time calculates a dot to rise, the suit of the 3rd divorce that mentions again after 6 months since the day in judgment become effective.
The 2nd kind of opinion thinks, the day that should reject prosecution ruling book become effective with the 2nd calculates a dot to rise, rule in this the ability after 6 months since the day of student effect can sue a divorce again, accuser sues a divorce the 3rd times in the day that rejects prosecution ruling book to make, do not accord with condition of put on record.
▌ reviews analyse
The author agrees with the first kind of opinion, its reason is:
Above all, reject sueing is after pointing to people court put on record, be aimed at the prosecution of accuser, just began phase in proceeding, find out via examining do not accord with sue a condition to perhaps belong to the condition that the code of civil law sets the 124th times, applicable program law, use ruling form, according to is legal order ruling gives reject, be authority of pair of program meaning appeal affirm. Basis " top people court about applicable < People's Republic of China is civil bring a case to court tells a way > explanation " the 212nd regulation, the ruling does not grant to accept, overrule prosecution case, accuser is sued again, accord with sue a condition and do not belong to what the code of civil law sets condition the 124th times, people court should grant to accept. Reason produces legal effectiveness in the ruling that rejects a divorce to sue hind, accuser sues again, if accord with,sue a condition, people court should give accept.
Next, basis " code of civil law of People's Republic of China " the 124th the 7th regulation, the court decision forbids to divorce and mediate the divorce case of become reconciled, without new case, new ground, accuser sues again inside 6 months, do not grant to accept. At the same time " top people court about applicable < People's Republic of China is civil bring a case to court tells a way > explanation " the 214th the 2nd section provision, accuser nolles prosequi or press nolle prosequi the divorce case of processing, without new case, new ground, sue again inside 6 months, code of civil law prepping according to the 124th the 7th regulation does not grant to accept. Afore-mentioned regulations all fasten allegation sex law and judicatory explanation, the case that the ability after ruling 6 months prosecutes again includes a court decision to forbid divorce, mediation to become reconciled, accuser nolles prosequi and be pressed nolle prosequi handle these 4 kinds of cases. In this case, because La Mou violates legal order, was ruled to reject a divorce the 2nd times to sue lawfully, do not attribute one of 4 kinds of afore-mentioned situation, do not answer applicable the regulation that sues again after 6 months. 6 lunar hind since the day of the civil judgment go into effect that reason La Mou sues a divorce the 3rd times to still ought to be adjudicated to forbid to divorce with first time mention.
Again, la Mou is the same as day at getting those who reject the civil ruling book that sue the 2nd times, mention the 3rd times divorce suit, although this are civil,ruling book is returned not become effective, but since the day that former, the accused all did not get this ruling book in its appeal mentions inside 10 days. At the same time the 3rd divorce of accuser is sued not the basis of civil ruling eventuate with the 2nd lawsuit, this ruling is not right also on any hypostatic meanings accuse authority is made affirm, the computation of 6 months after the court decision forbids to divorce is nodded, be not sued because of the 2nd of La Mou and interrupt, divorce suit mentions after 6 months since the day of the civil judgment go into effect that accuser still must be prohibited to divorce by the court decision with first time. In this case, the day of the civil judgment go into effect that La Mou is prohibited to divorce by the court decision for the first time is on October 16, 2016, la Mou mentioned the 3rd times on April 19, 2017 lawsuit has exceeded 6 months, the 3rd divorce sues reason La Mou regulation of be good law.
Finally, law and judicatory explanation stipulate the ability after the divorce case that has 4 kinds of afore-mentioned state needs 6 months is sued again, basically be to make husband and wife bilateral be in of 6 months marriage is examined afresh in amortize period, self-communion handles a divorce cautiously, be attributed to good chance again to both sides, concern in order to stabilize marriage, safeguard a family complete stabilize with the society. And the ruling rejects accuser divorce to sue, can not reflect afore-mentioned legislative original idea, also not be the meaning that prosecutor is willing to defer to divorce or does not divorce express, because accuser does not accord with condition of put on record,be only, beard accuser fills material of neat relevant put on record or when awaiting condition of relevant put on record to accomplish, accuser still but again put on record is sued, even if by nolle prosequi processing also is to be based on him accuser idle is opposite at exercise right a kind of limitation that its appeal to to authority undertakes. So law and judicatory explanation did not reject the ruling the case regulation that the divorce sues to be the ability after needing 6 months to sue a divorce again, it is to accord with objective and actual with what have legal principle basis.
